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Reinhardt v. Wexford Health Source Inc.

United States District Court, D. Maryland

November 18, 2019

DAVID ALLEN REINHARDT, Plaintiff
v.
WEXFORD HEALTH SOURCE, INC., Defendant

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.

         In response to this civil rights complaint Defendant Wexford Health Source, Inc., filed a motion to dismiss or for summary judgment. ECF No. 15. Plaintiff also filed a motion for summary judgment (ECF No. 17) which is opposed by Defendant (ECF No. 18). No hearing is necessary to determine the matters pending. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, Defendant's motion, construed as a motion for summary judgment, will be granted and Plaintiff's motion will be denied.

         Background

         Plaintiff David Allen Reinhardt, an inmate committed to the custody of the Department of Public Safety and Correctional Services and formerly confined at Western Correctional Institution (“WCI”), [1] alleges in his complaint that his request for treatment and accommodation for his lower back pain was not properly addressed by providing him a lower bunk assignment and pain management measures including medication and/or a cane. ECF No. 1 at 2. Specifically, he claims that he filed a sick call slip on September 17, 2018, to be seen for bottom bunk assignment because he was experiencing pain and numbness in his right leg that extended from his hip to his toe. Id. When he was seen two weeks later, after filing another sick call slip, he was not seen by a provider. While he did not receive a bottom bunk assignment order, he did receive medication for the pain. Id.

         On February 17, 2017, an x-ray performed at Jessup Correctional Institution (JCI) revealed that Mr. Reinhardt has deteriorating discs in his back that are impinging on his sciatic nerve, causing numbness and pain in his right leg. Id. Mr. Reinhardt states he was told this deterioration was a function of aging. Id.

         As relief, Mr. Reinhardt seeks monetary damages and a declaratory judgment stating that he should be provided with a bottom bunk and given proper pain management treatment, and a policy should be in place requiring a provider to see inmates for the first sick call request submitted. Id. at 3.

         The sole Defendant named in the complaint, Wexford Health Source, Inc. (“Wexford”), was the private medical care contractor for the Maryland DPSCS, but as of January 1, 2019, no longer serves in that capacity as the contract was awarded to Corizon Health. In support of Wexford's dispositive motion, Dr. Asresahegn Getachew[2] provides an affidavit summarizing the care provided to Mr. Reinhardt for his complaint of lower back pain (ECF No. 15-5) as well as relevant medical records (ECF No. 15-4). Wexford maintains that the conservative course of care provided to Mr. Reinhardt and outlined below does not support an Eighth Amendment claim. ECF No. 15.

         Dr. Getachew acknowledges that Mr. Reinhardt has a history of lower back pain with pain and numbness radiating to his right leg and foot. ECF No. 15-5 at 1, ¶ 3. He states that the February 10, 2017, x-ray “indicated mild degenerative changes” which are “unremarkable and a natural consequence of aging in all individuals.” Id. at 2-3, ¶5; ECF No. 15-4 at 30 (x-ray report). The doctor states that the cause of Mr. Reinhardt's radiculopathy is unknown; he did not report trauma that caused his lower back pain. ECF No. 15-5 at 3, ¶5. The medical record, however, indicates that Mr. Reinhardt did report that his back pain started approximately six months before the initial encounter with a “twisting motion” when “avoiding a big box that hit him on the chest.” ECF No. 15-4 at 3 (Feb. 8, 2017 Provider Sick Call). A test performed to determine if there is inflammation of the sciatic nerve involving a straight leg raising proved positive when performed on Mr. Reinhardt. ECF No. 15-5 at 3, ¶5; ECF No. 15-4 at 8 (noting “straight leg raise positive: 30 degrees of R foot”). In addition, Mr. Reinhardt's lumbar spine is “tender to palpation.” ECF No. 15-5 at 3, ¶5.

         The attempts to address Mr. Reinhardt's pain have included medications such as Cymbalta, Tegretol, Glucosamine Chondroitin, and Mobic as well as ice, heat, and capsaicin cream. ECF No. 15-5 at 3, ¶5. Further, Mr. Reinhardt was provided with physical therapy sessions that included strength and range of motion exercises. Id.; see also ECF No. 15-4 at 32 (Dec. 15, 2017 Provider Sick Call noting plan to order Medrol Dosepak[3] and referral to Physical Therapy); 35 (Dec. 15, 2017 referral to physical therapy); 37, 42-46 (physical therapy sessions); 55 (May 20, 2018 referral to physical therapy); 60-64, 69-70 (physical therapy sessions). Dr. Getachew acknowledges that the treatment provided has not eradicated Mr. Reinhardt's pain and states that “[i]t is possible that [he] may never attain complete relief from his [lower back pain].” ECF No. 15-5 at 3, ¶5.

         According to Dr. Getachew, Mr. Reinhardt has “lately been requesting to be prescribed Neurontin” to address his pain. Id. at ¶6, see also ECF No. 15-4 at 52 (May 20, 2018 Provider Sick Call, discussed prescription for Tegretol in lieu of Neurontin “as this is in the same class of meds as Neurontin”); 84 (Nov. 21, 2018 Provider Sick Call, noting discussion of effectiveness of Neurontin in addressing neuropathic pain). His requests have been denied because “Neurontin has been deemed a drug of abuse, and increasing patterns of overuse and abuse have been observed within DPSCS.” ECF No. 15-5 at 3, ¶6. Dr. Getachew further explains that “DPSCS has determined to eliminate its use for non-FDA approved conditions absent exceptional circumstances.”[4] Id. Because Neurontin is “FDA approved as an anticonvulsant and for treatment of neuropathic pain (nerve pain) caused by herpes virus or shingles” and as Mr. Reinhardt has neither a seizure disorder nor nerve pain caused by herpes or shingles, his condition does not warrant a prescription for Neurontin. Id.

         An order for a bottom bunk assignment for six months was noted during a visit that occurred on May 30, 2017. ECF No. 15-4 at 14. However, on September 22, 2017, four months after the six-month order was allegedly issued, it is noted that Mr. Reinhardt was “currently on top bunk and that is exacerbating his pain.” Id. at 21. A one-year order for bottom bunk status is noted as completed during that encounter. Id. at 22 (“bottom bunk x 1 yr ex: 9/22/2018). It is unclear whether the bottom bunk assignment order was actually issued in May, or whether it was not followed by correctional staff; Mr. Reinhardt does not raise any allegations concerning this discrepancy.

         Regarding Mr. Reinhardt's request for renewal of his bottom bunk assignment submitted on September 17, 2018, Dr. Getachew admits that “for unexplained reasons [Mr. Reinhardt] was not seen by a provider until November 21, 2018.” ECF No. 15-5 at 3, ¶8. The written record for the November 21, 2018 encounter does not include any reference to a bottom bunk assignment. Id., see also ECF No. 15-4 at 84 (Nov. 21, 2018 Provider Sick Call for medication renewal). Following that encounter up to and including January 2, 2019, when Mr. Reinhardt was transferred from WCI, no further sick call requests regarding bottom bunk assignment were received from Mr. Reinhardt. Id.

         Standard ...


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